People v. Burgos CA4/1

Filed 6/13/14 P. v. Burgos CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D063906

Plaintiff and Respondent,

v. (Super. Ct. No. SCS259123)

AUGUSTINE DAVID BURGOS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Francis M.

Devaney, Judge. Affirmed.

Alissa Bjerkhoel, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kristen

Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
 Augustine Burgos appeals from a judgment convicting him of assault with a

deadly weapon and other offenses arising from his participation in an attack on a jail

inmate by a group of inmates. Challenging his assault with a deadly weapon conviction,

defendant argues the prosecution's evidence did not show a deadly weapon was used

during the assault. Challenging gang benefit enhancement findings, he contends (1) the

prosecution's evidence did not establish all the statutory elements for a criminal street

gang, and (2) the trial court erred in omitting from the jury instructions the definition for

the "pattern of criminal gang activity" element. (Pen. Code, § 186.22.)1 He also asserts

instructional error based on the trial court's (1) failure to instruct on simple assault as a

lesser included offense of assault with a deadly weapon, and (2) failure to provide

cautionary accomplice instructions. We find no reversible error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

At about 10:40 a.m. on August 20, 2012, Joseph Bartolome, a Hispanic gang

member and an inmate at the George Bailey Detention Facility, was attacked by a group

of Hispanic inmates during lunch in the dayroom. A surveillance video capturing the

assault was reviewed by deputies who worked at the detention facility, and they identified

11 inmates as participants in the attack on Bartolome, including defendant and

codefendants James Martinez, Ismael Hernandez, and Jason Arrona. As we detail below,

defendant—who was a Mexican Mafia "shot caller" at the detention facility—was

convicted of various offenses arising from the attack. Codefendants Hernandez and

1 Subsequent unspecified statutory references are to the Penal Code.
2
Arrona testified on their own behalf and admitted their involvement, but presented claims

of duress. Codefendant Martinez (who did not testify) presented defenses of mistaken

identity and duress. The jury acquitted the codefendants.

After the attack, victim Bartolome told a deputy the inmates had called him a

predator. The deputy testified that a predator is a person accused of raping a woman or

child, and that such a person is a target for violence in a custodial setting. Several days

after the attack, defendant gave two letters to a deputy for mailing; in the letters

defendant explained "why he did what he did" to Bartolome, stating that Bartolome was a

predator who had sexually assaulted a female.

Relevant to the assault with a deadly weapon charge, the prosecution witnesses

acknowledged no weapon was visible in the surveillance video of the fight, and no

weapon was found when the inmates and their property were searched after the fight.

However, the deputy who transported Bartolome for medical treatment observed he had

bleeding cuts and puncture wounds, as well as scratches, a black eye, bruising and

swelling on his head and face, and redness on his back. The cuts included a cut on his ear

and neck, and cuts on his abdomen. There were two puncture wounds on his right arm.

On cross-examination, the deputy acknowledged he did not know what caused the

puncture wounds, but testified he "highly doubt[ed]" they could be caused by long

fingernails because it is "hard to break through the skin like that." A surgeon who

examined Bartolome at the hospital wrote in her report that Bartolome had bruising

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around his eyes, lacerations to his right ear, and lacerations on his neck and arm.2 His

ear laceration required sutures. The surgeon testified a laceration is a cut on the skin, and

it is usually caused by a sharp object such as a knife, razor blade or piece of metal or

glass. The surgeon could not specify whether Bartolome's injuries were caused by a

weapon and she acknowledged a laceration could also come from being struck with a fist

or foot; however, she opined that a laceration from a fist or foot is less common.

Relevant to the gang enhancements, prosecution experts described the control of

the Mexican Mafia within custodial facilities and out on the street, and defendant's

involvement with the Mexican Mafia and his local gang. The experts explained that the

Mexican Mafia, which originated as a prison gang, is now in charge of all the Hispanic

street gangs in southern California. The organizational hierarchy consists of about 150 to

200 full-fledged members at the top level, followed by associates who have the authority

to enforce the gang's rules in the prison yards and neighborhoods, and "sureños" who

earn their status by "put[ting] in work" as "soldier[s]" on behalf of the gang. The

majority of the full-fledged Mexican Mafia members are in prison, and about 10 to 20

percent are on the street. The Mexican Mafia controls people through fear and

intimidation by using its soldiers to attack or kill anyone who violates its rules. In

addition to its control over Hispanic gang members in jails and prisons, the organization

controls "tens of thousands of gang members" on the street.

2 The surgeon had no independent recollection of Bartolome's injuries, and relied on
her report to describe the injuries. The report did not describe the characteristics of the
lacerations, and it did not specify there were puncture wounds.
4
 Defendant is a member of the East Side San Diego gang (East Side), which

consists mostly of Hispanic males. A gang detective who specialized in investigations of

East Side testified East Side was established in 1977 and it currently had almost 300

members. To establish East Side qualified as a criminal street gang, the detective

described two instances of criminal gang activity that resulted in convictions of East Side

gang members. In one incident, a gang member summoned other gang members to

assault a bystander who had witnessed the gang member's vandalism activity; during the

attack the gang members repeatedly stabbed the victim and spray painted his face. In the

second incident, a gang member got into a fight with a man working on his car in a

garage, and in response another gang member arrived with a pair of brass knuckles and

assaulted the man. Like other Hispanic street gangs, East Side is subservient to the

Mexican Mafia and actively follows its rules on the street. When incarcerated in

custodial facilities, Hispanic gangs "at war" with each other outside of custody are not

allowed to fight and they become one gang under the Mexican Mafia.

Defendant was identified as a Mexican Mafia shot caller, which is a high ranking

associate who runs a custodial facility on behalf of the organization.3 The shot caller sets

the rules for the facility and has the authority to order assaults. If a shot caller orders an

attack on an inmate, the sureños are obligated to participate or they will be ostracized and

victimized. Relevant to the motive for the assault on Bartolome, under the Mexican

3 On July 26, 2012 (about one month before the assault), Bartolome was arrested for
a parole violation when he was found in possession of a "kite" (a note written in tiny
writing giving orders from a gang member in prison or jail). The kite was written by
defendant and reflected he was a shot caller.
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Mafia rules, rapists and child molesters are "taboo" and a shot caller is required to target

them for assault.

Addressing the issue of conduct intended to benefit a gang, a prosecution gang

expert testified that when a shot caller from a particular gang orders an assault, his status

as a Mexican Mafia shot caller benefits his gang by improving the reputation of the gang;

i.e., "for [a gang] to have somebody that is in power representing their neighborhood is

huge." The Mexican Mafia also benefits because the assault shows the strength of the

organization and allows it to "keep everybody in check" through fear and intimidation.

Codefendants' Testimony on Their Own Behalf

After the prosecution presented its case-in-chief, codefendants Arrona and

Hernandez testified on their own behalf. Arrona and Hernandez stated defendant was the

shot caller at the jail. On the morning of the assault, Arrona's cellmate woke him and told

him another inmate had stopped by the cell door and said defendant "had an order. To

follow suit. No questions asked." Hernandez, who was the victim's cellmate, did not

know an assault was going to occur, but he knew that under the jail rules if he saw

Hispanics "jumping someone" he had to participate.

When Arrona was in the dayroom, he saw defendant walking towards the table

where the victim was seated. As defendant was approaching, defendant pulled a "shank"

(a knife) from his waistband, and then put it back in his waistband. Arrona did not see

the blade of the knife, but he saw the handle which was about six inches long.

Hernandez was seated at the same table as the victim, and Arrona was about eight

to 10 feet away from their table. Hernandez and Arrona saw another inmate (Contreras)

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approach the victim, put his arm around the victim's neck, hold him down at the table,

and whisper in his ear. Defendant then made stabbing motions on the victim's right side,

and other inmates rushed towards the victim and began assaulting him. The victim broke

away; defendant did not pursue the victim but yelled out an order to " 'get him out of

here' "; and the other inmates followed the victim and continued the attack. During the

assault, the inmates screamed out "predator." When an alarm sounded, the inmates

stopped the attack and went to their cells.

Arrona and Hernandez testified they participated (or pretended to participate) in

the assault because they knew if they did not do so they and their families would be in

danger.

Arrona also testified he did not see the knife itself while defendant was at the table

assaulting the victim, but he saw defendant's arm "moving forward as if he was holding

something" and making a stabbing-type movement. Hernandez testified he did not see a

weapon; defendant may have been punching the victim; but it was also possible

defendant was using a weapon because his arm was making "repeated stabbing-type

motions."

Jury Verdict and Sentence

Defendant was charged and convicted of assault with a deadly weapon, assault by

means of force likely to produce great bodily injury, and conspiracy, with gang benefit

enhancements for each count. The court sentenced him to eight years in prison on count

1 (three years for assault with a deadly weapon and five years for the gang enhancement);

stayed the sentences on the remaining counts; and struck prior prison term enhancements.

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 DISCUSSION

I. Sufficiency of the Evidence for Assault with a Deadly Weapon

Challenging his conviction of assault with a deadly weapon, defendant argues the

prosecution's evidence did not show a deadly weapon was used during the attack, and

accordingly the trial court erred in denying his motion for acquittal at the conclusion of

the prosecution's case.

To decide whether a motion for acquittal should have been granted at the close of

the prosecution's case, we evaluate only the prosecution's evidence, and we view this

evidence in the light most favorable to the judgment. (People v. Cole (2004) 33 Cal.4th

1158, 1212-1213; People v. Rice (1988) 200 Cal.App.3d 647, 651.) The purpose of a

motion for acquittal is " 'to weed out as soon as possible those few instances in which the

prosecution fails to make even a prima facie case.' [Citations.] The question 'is simply

whether the prosecution has presented sufficient evidence to present the matter to the jury

for its determination.' " (People v. Stevens (2007) 41 Cal.4th 182, 200.)

Drawing all reasonable inferences in favor of the judgment, the prosecution's

evidence supports that a deadly weapon was used during the attack. The evidence

showed the victim incurred wounds that were bleeding, and his wounds included a cut on

his ear that required sutures, a cut on his neck, cuts on his abdomen, and cuts or puncture

wounds on his arms. The examining surgeon testified that lacerations (i.e., cuts) are

typically caused by sharp objects and they are less commonly caused by fists or feet. The

deputy who observed the victim's wounds opined it was doubtful they were caused by a

long fingernail. Given that multiple cuts were inflicted on the victim, the victim was

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bleeding, and one of the cuts required suturing, the jury could reasonably infer these cuts

were caused by a sharp object that constituted a deadly weapon.

To support his claim there was only a suspicion of deadly weapon use and not

proof beyond a reasonable doubt, defendant cites facts that could support a contrary

finding, including the failure of the video to depict a weapon and the failure to find a

weapon after the assault. Defendant has not shown that the video captured a close-up

view of his hands during the assault, nor that he could not have successfully disposed of

the knife after the assault. The factors cited by defendant do not provide definitive

evidence overriding the evidence submitted by the prosecution that supported deadly

weapon use.

II. Challenges to the Gang Enhancements

Challenging the gang enhancement findings, defendant argues there was

insufficient evidence to qualify East Side and the Mexican Mafia as criminal street gangs,

and accordingly the trial court erred in denying his motion for acquittal at the conclusion

of the prosecution's case and his new trial motion. He also asserts the court erred in

omitting the pattern of criminal gang activity element from the jury instructions.

A. General Law: the Gang Enhancement Statute

The gang enhancement statute applies to conduct intended to benefit a "criminal

street gang." (§ 186.22, subd. (b).) To establish that a group is a criminal street gang, the

prosecution must show (1) the group has "as one of its primary activities the commission

of one or more" statutorily-specified crimes, and (2) the group's "members individually or

collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22,

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subd. (f), italics added.) To satisfy the primary activity element, the commission of one

or more of the statutorily enumerated crimes must be one of the group's chief or principal

occupations; the occasional commission of the crimes by the group's members does not

suffice. (People v. Vy (2004) 122 Cal.App.4th 1209, 1222.) The pattern of criminal gang

activity element requires the commission or attempted commission of two or more

statutorily listed offenses, that the last offense occurred within three years after a prior

offense, and that the offenses were committed on separate occasions or by two or more

persons. (§ 186.22, subd. (e).) Charged offenses in the current case can be included in

the offenses relied upon to establish the primary activity and pattern of criminal gang

activity elements. (People v. Bragg (2008) 161 Cal.App.4th 1385, 1401; People v. Vy,

supra, 122 Cal.App.4th at p. 1225, fn. 10.) Also, the two predicate offenses required for

the pattern of criminal gang activity element need not be violations of different Penal

Code provisions; rather, the violations may be based on the same Penal Code provision.

(People v. Loeun (1997) 17 Cal.4th 1, 10, fn. 4.)

B. Sufficiency of the Evidence To Establish Gang as Criminal Street Gang

Defendant claims the prosecution did not show his local gang (East Side) qualified

as a criminal street gang. In support, he contends the evidence did not show the gang

committed the statutorily specified offenses as a primary activity, but rather the evidence

merely showed gang members committed three isolated incidents of these offenses (i.e.,

the two assault incidents involving East Side members described by the gang detective,

and the current alleged assault committed by defendant). Additionally, he contends there

was no showing the Mexican Mafia met the statutory criteria for a criminal street gang,

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asserting the Mexican Mafia is a prison gang, not a street gang, and the prosecution did

not present evidence to establish the primary activity and pattern of criminal activity

elements with respect to the Mexican Mafia.

The primary activity element may be established by evidence showing the group's

members consistently and repeatedly have committed statutorily enumerated offenses, or

by testimony from a gang expert stating the gang was primarily engaged in the

commission of statutorily specified offenses. (People v. Vy, supra, 122 Cal.App.4th at

pp. 1222-1223.) Drawing all reasonable inferences in favor of the judgment, the

prosecution's evidence supports that East Side members have consistently and repeatedly

committed assault with a deadly weapon or by means of force likely to produce great

bodily injury, which is one of the statutorily enumerated offenses. (§ 186.22, subd.

(e)(1).) A gang detective described two incidents in which East Side gang members

joined together to commit assaults; one incident involved a stabbing instrument (giving

rise to a conviction in June 2012), and the other incident involved brass knuckles. Also,

the current charged assault (occurring in August 2012) concerned an East Side gang

member (defendant) ordering a group attack based on his position as a Mexican Mafia

shot caller. Contrary to defendant's assertion, the jury was not required to view these

three assault incidents as isolated incidents committed by East Side gang members.

Rather, the jury could reasonably find the three assaults reflected consistent, recurring

aggravated assault activity by the gang. (See People v. Vy, supra, 122 Cal.App.4th at pp.

1225-1226.)

11
 To support his challenge to the primary activity element, defendant notes the

prosecution's gang expert did not directly testify the specified criminal conduct

committed by East Side gang members was the gang's primary activity, nor did the expert

generally testify about what types of crimes the gang committed. This testimony was not

necessary given the evidence describing the specific offenses committed by East Side

gang members on multiple occasions.

Defendant's citations to two cases in which the appellate courts found insufficient

evidence of the primary activity element (In re Alexander L. (2007) 149 Cal.App.4th 605

and People v. Perez (2004) 118 Cal.App.4th 151) do not persuade us to reach a contrary

conclusion. In Alexander, a gang expert provided general testimony about assaults and

other offenses committed by gang members but with no description of the circumstances

of the crimes or the source of his information, and he also testified the vast majority of

cases connected to the gang that he had come across concerned graffiti. (In re Alexander

L., supra, at pp. 611-612.) In contrast here, the gang detective's testimony reflected he

was very familiar with East Side's criminal activities; he provided a detailed description

of the gang members' assaults and was the investigating officer for one of them; and there

was no suggestion the gang focused primarily on graffiti. In Perez, the record showed

three retaliatory shootings by gang members over a period of less than a week, plus a

beating six years earlier. (Perez, supra, at pp. 156-157, 160.) The facts in Perez

reflected a single-week period of retaliatory violence tied to one incident and a lengthy

time lapse with no criminal behavior, whereas the jury here could reasonably conclude

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the repeated, unconnected assaults committed by East Side gang members over a period

of several months showed they committed assaults on a regular, ongoing basis.

As to defendant's assertion that the prosecution did not show the Mexican Mafia

met the statutory requirements for a criminal street gang, this particularized showing was

not necessary. The record shows that although the prosecutor generally argued the gang

enhancement could be established with respect to either East Side or the Mexican Mafia,

the prosecution focused its evidentiary presentation on qualifying East Side as a criminal

street gang. To this effect, the prosecution's gang expert described two assaultive

incidents committed by East Side members; the jury was instructed a criminal street gang

is a group that has as a primary activity "the commission of Assault with a Deadly

Weapon and Vandalism"; and the prosecutor referred to "predicate acts" evidence for

East Side during closing arguments. The prosecution's evidence concerning the Mexican

Mafia was more general in nature, including testimony the Mexican Mafia uses violence

to exert its control through fear and intimidation.

Because the charged assault incident occurred in a custodial setting, it was not

necessary for the prosecution to distinguish between East Side and the Mexican Mafia for

purposes of establishing the gang benefit enhancement. The record shows that once a

Hispanic gang member is incarcerated, the distinctions between the two groups

essentially disappear. The prosecution's gang experts testified all the local Hispanic

gangs are subservient to the Mexican Mafia, and the diverse gangs become one gang

under the Mexican Mafia when gang members are in a prison or jail facility. There is

nothing in the gang enhancement statutory scheme suggesting the Legislature intended to

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require a differentiated evidentiary showing when a local gang member's activities

become intertwined with or subsumed by the Mexican Mafia in a custodial environment.

Because in the custodial setting the local gangs and the overarching prison gang operate

as a single unit, the prosecution's showing that East Side meets the statutory requirements

for a criminal street gang sufficed to establish the criminal street gang element of the

enhancement with no need for more specific evidence concerning the Mexican Mafia.

(See People v. Williams (2008) 167 Cal.App.4th 983, 988 [for purposes of gang

enhancements, various groups can reasonably be viewed as parts of same organization

when record shows "collaborative activities or collective organizational structure"].)

Finally, to the extent defendant argues the gang evidence should not have been

admitted and its highly prejudicial effect warranted a new trial, the contention is

unavailing. The gang evidence, including with respect to the Mexican Mafia, was highly

relevant to the issues of motive for the assault, codefendants' claims of duress, and the

gang enhancement allegations.

C. Failure To Include Definition of Pattern of Criminal

Gang Activity in Jury Instructions

The trial court provided the jury with the standard jury instruction on the gang

benefit enhancement, which told the jury the prosecution had to prove the group's

members have engaged in a "pattern of criminal gang activity." (See CALCRIM No.

1401.) However, the instruction provided to the jury did not include the definition of

pattern of criminal gang activity set forth in the statute and the standard instruction.

Thus, the jury was not told the specific statutory definition of this phrase; i.e., the

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commission or attempted commission of two or more specified crimes; the most recent

crime occurred within three years of one of the earlier crimes; and the crimes were

committed on separate occasions or were personally committed by two or more persons.

(§ 186.22, subd. (e); CALCRIM No. 1401.)

The Attorney General does not dispute the court erred by omitting the definition of

this element, but argues the error was harmless beyond a reasonable doubt. (See People

v. Bragg, supra, 161 Cal.App.4th at pp. 1400-1401.) We agree. As to this error,

defendant does not argue the error was prejudicial with respect to East Side, and the

record contains compelling evidence that East Side satisfies the statutory requirements

for this element. The record shows an East Side member sustained a conviction in June

2012 for an assault involving a stabbing, and in August 2012 defendant (an East Side

gang member) committed the current assault with a knife. This evidence reflects that

East Side members committed two of the statutorily specified offenses (i.e., two instances

of assault with a deadly weapon); the last offense occurred within three years after a prior

offense; and the two offenses were committed on separate occasions.4 As apparently

recognized by defendant, given the strength of the evidence that East Side has engaged in

4 The prosecution presented documentary evidence concerning the two predicate
offenses committed by East Side gang members described by the gang detective;
however, the record on appeal does not include these documents and we have not found
anything in the appellate record referencing the date of the second predicate offense. In
his reply brief defendant states the first predicate offense (resulting in the June 2012
conviction) occurred in 2011, and the second predicate offense occurred in 2012. In any
event, the charged assault by defendant can be used to establish that the last of the
predicate offenses occurred within three years of a prior predicate offense. (People v.
Bragg, supra, 161 Cal.App.4th at p. 1401.)
15
a pattern of criminal activity as defined by the statute, there is no doubt the jury would

have found these requirements satisfied for East Side had it been properly instructed.5

Defendant does argue, however, the instructional error was prejudicial with

respect to the Mexican Mafia. We reject this contention of reversible error because, as

we stated above, in a custodial setting the local Hispanic gangs and the Mexican Mafia

essentially merge into a unitary gang. Given that there was no need to separately qualify

the Mexican Mafia as a criminal street gang within the statutory definition, there was no

prejudicial error arising from the failure to define the pattern of criminal gang activity

element.

III. Failure To Instruct on Simple Assault as Lesser Included

Offense of Assault with Deadly Weapon

The trial court instructed the jury on simple assault as a lesser included offense of

assault by means of force likely to cause great bodily injury (count 2). However, it did

not instruct on simple assault as a lesser included offense of assault with a deadly weapon

(count 1). Defendant contends the trial court erred in failing to provide the simple assault

instruction as a lesser offense of count 1.

A trial court has a sua sponte duty to instruct on a lesser included offense

whenever there is substantial evidence for a jury to conclude that the lesser offense, but

not the greater, was committed. (People v. Prince (2007) 40 Cal.4th 1179, 1265.)

5 Indeed, during discussions with the trial court about whether the documents
showing the predicate offense convictions should be provided to the jurors in the jury
room, defendant's trial counsel told the court that he was not contesting that East Side
was a criminal street gang.
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Assuming arguendo the trial court should have instructed the jury on simple assault as a

lesser included offense of assault with a deadly weapon, the error was harmless under any

standard of review. (See id. at p. 1267 [reasonable probability of a different outcome

standard generally applies to erroneous failure to instruct on a lesser included offense];

People v. Rogers (2006) 39 Cal.4th 826, 872 [harmless beyond a reasonable doubt

standard may apply when omission of lesser included offense instruction deprived

defendant of right to present complete defense].)

The rationale for requiring instruction on lesser included offenses is to avoid

forcing the jury into an " 'unwarranted all-or-nothing choice' " which creates the risk the

jury will convict on the charged offense even though one of the elements remains in

doubt because " 'the defendant is plainly guilty of some offense . . . .' " (People v. Hughes

(2002) 27 Cal.4th 287, 365.) Here, there was no risk the jury might have convicted

defendant of count 1 assault with a deadly weapon even if it had doubts about the deadly

weapon use because it was provided no other option for conviction. To the contrary, the

jury was provided the options of convicting defendant of count 2 assault by means of

force likely to produce great bodily injury or its lesser offense of simple assault. We

have no doubt that even without instruction on simple assault as a lesser offense of count

1, if any jurors had discredited the evidence supporting deadly weapon use, the jury

would not have reached a guilty verdict on count 1 but would have returned a conviction

on count 2 only. (See People v. Lipscomb (1993) 17 Cal.App.4th 564, 571.)

17
 IV. Failure To Provide Cautionary Accomplice Instructions

Defendant argues there was substantial evidence that Arrona and Hernandez were

accomplices, and accordingly the trial court was sua sponte required to provide the

cautionary instructions relevant to accomplice testimony.

When an accomplice is called to testify by the prosecutor or the defendant, the

trial court has a sua sponte duty to provide cautionary instructions to the jury stating that

to the extent the testimony tends to incriminate the defendant it cannot alone be used to

convict but requires corroboration, and it should be viewed with caution. (People v.

Guiuan (1998) 18 Cal.4th 558, 569; see People v. Howard (2008) 42 Cal.4th 1000, 1021-

1022; People v. Zapien (1993) 4 Cal.4th 929, 982; CALCRIM No. 334.) The rationale

for requiring the cautionary instructions is that to "the extent an accomplice testifies on

behalf of the prosecution, the testimony is subject to the taint of an improper motive, i.e.,

that of promoting his or her own self interest by inculpating the defendant." (Guiuan,

supra, at p. 568.) However, when an accomplice is a codefendant who testifies on his or

her own behalf, different rules may apply because of the potential for prejudice to the

codefendant's case. (People v. Terry (1970) 2 Cal.3d 362, 398-399.)

When a codefendant/accomplice takes the stand on his or her own behalf and

implicates the defendant while also admitting his or her own guilt, the courts have

concluded the normal rule triggering the sua sponte duty to instruct on the cautionary

principles should apply. (People v. Terry, supra, 2 Cal.3d at p. 399.) In this

circumstance, there is no potential for prejudice to the codefendant's case because he or

she has effectively confessed guilt. (Ibid.) In contrast, the California Supreme Court has

18
declined to impose the sua sponte duty when a testifying codefendant implicates the

defendant but denies his or her own guilt, reasoning this is a matter for the trial court's

discretion because the "court may properly conclude that the giving of accomplice

instructions might improperly prejudice the codefendant's case." (People v. Ramos

(1982) 30 Cal.3d 553, 581-582; Terry, supra, at pp. 398-399; People v. Catlin (1959) 169

Cal.App.2d 247, 255 [it might "subject the codefendant to unfair prejudice in the eyes of

the jury to give even a limited instruction on accomplice testimony"].)

In more recent cases the California Supreme Court has concluded that even when

a codefendant/accomplice testifies on his or her own behalf and denies guilt, the trial

court is required to give the cautionary instructions upon request by a defendant,

reasoning that "just as in the case of an accomplice called to testify by the prosecution,

[the codefendant's] testimony was 'subject to the taint of an improper motive . . . .' "

(People v. Box (2000) 23 Cal.4th 1153, 1209; see People v. Avila (2006) 38 Cal.4th 491,

562.) However, our high court has not expressly overruled its earlier decisions in Terry

and Ramos declining to impose a sua sponte duty when the testifying codefendant denies

his or her guilt. (See People v. Smith (2005) 135 Cal.App.4th 914, 928.)

Here, the two codefendants testified on their own behalf and denied their guilt

based on claims of duress. Accordingly, under our high court's holdings in Terry and

Ramos, defendant's contention that the trial court had a sua sponte duty to provide the

cautionary instructions is unavailing.

Alternatively, even assuming arguendo the trial court should have sua sponte

provided the cautionary instructions, the failure to do so was not prejudicial. The failure

19
to give accomplice instructions is harmless if there is sufficient corroborating evidence in

the record. (People v. Avila, supra, 38 Cal.4th at p. 562.) The corroborating evidence

must tend to connect the defendant with the crime without aid or assistance from the

accomplice's testimony; however, the corroborative evidence may be slight, may be

entitled to little consideration when standing alone, and need not establish all the

elements of the crime. (Id. at pp. 562-563; People v. Williams (2013) 56 Cal.4th 630,

678-679.) Here, there was ample corroborating evidence connecting defendant to the

crime independent of the codefendants' testimony. The prosecution presented evidence

showing defendant was depicted in the surveillance video participating in the assault on

the victim, and defendant was both a gang member and a shot caller for the Mexican

Mafia which gave him authority to order assaults. This evidence tied defendant to the

alleged offenses. To the extent defendant asserts there was insufficient corroboration of

the deadly weapon element for count 1, the contention is unavailing because the

corroborating evidence need not relate to each element. In any event, the prosecution's

evidence showing the victim incurred cuts consistent with the use of a sharp object,

combined with the evidence showing defendant's participation, sufficiently tied defendant

to the deadly weapon element of count 1 assault with a deadly weapon.

Further, even without an instruction informing the jury to view the accomplice

testimony with caution, the jury would have understood that the codefendants had an

incentive to place culpability on defendant and this should be considered when evaluating

their credibility. The testifying codefendants presented a duress defense based on their

claims that defendant was a shot caller and they had to follow his orders to avoid peril to

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themselves and their families. Further, the jury was told that when judging a witness's

credibility, it could consider whether the testimony was influenced by such factors as

bias, prejudice, or a personal interest in how the case is to be decided. (See CALCRIM

No. 226.) Based on the duress defense and the credibility instruction, the jurors would

have readily recognized they should carefully scrutinize the codefendants' testimony.

There is no reasonable probability that had the trial court given the cautionary accomplice

instructions the result would have been different. (People v. Box, supra, 23 Cal.4th at p.

1209.)

DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

MCINTYRE, J.

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